Citation Nr: 9817933
Decision Date: 06/11/98 Archive Date: 06/22/98
DOCKET NO. 94-18 332 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for a condition
manifested by internal bleeding, hemorrhoids, right lower
abdominal pain, irregular bowel movements, excessive gas,
gastrointestinal bleeding, constipation, dehydration, weight
loss, and weight gain and colon inflammation, to include as a
result of an undiagnosed illness.
2. Entitlement to service connection for a condition
manifested by earaches, ringing in the ear, hearing loss and
pain in the left ear, to include as a result of an
undiagnosed illness.
3. Entitlement to service connection for a condition
manifested by fatigue, night sweats, and fever, to include as
a result of an undiagnosed illness.
4. Entitlement to service connection for a condition
manifested by insomnia, lack of concentration and memory
loss, to include as a result of an undiagnosed illness.
5. Entitlement to service connection for a condition
manifested by a skin growth of the right thigh and skin
rashes, to include as a result of an undiagnosed illness.
6. Entitlement to service connection for a condition
manifested by hyperthyroidism, to include as a result of an
undiagnosed illness.
7. Entitlement to service connection for a condition
manifested by joint pains of the shoulders, knees, ankles,
hip, back and a crushed hand, to include as a result of an
undiagnosed illness.
8. Entitlement to service connection for a condition
manifested by blurred vision, eye infection, and general eye
damage, to include as a result of an undiagnosed illness.
9. Entitlement to service connection for a condition
manifested by frequent urination, to include as a result of
an undiagnosed illness.
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The veteran had active duty service from November 1989 until
April 1993. He served in the Southwest Asia theater in
support of Operation Desert Shield and Desert Storm from
September 3, 1990 until March 21, 1991.
This appeal comes before the Department of Veterans Affairs
(VA) Board of Veterans’ Appeals (Board) from rating decisions
of the Detroit, Michigan Regional Office (RO) which denied
service connection for the multiple disabilities delineated
on the title page, to include as the result of an undiagnosed
illness.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant asserts that he now has multiple conditions
manifested by symptoms of internal bleeding, hemorrhoids,
right lower abdominal pain, irregular bowel movements,
excessive gas, gastrointestinal bleeding, constipation,
dehydration, weight loss, weight gain, colon inflammation,
earaches, ringing in the ear, hearing loss and pain in the
left ear, fatigue, night sweats, fever, insomnia, lack of
concentration, memory loss, skin rashes, hyperthyroidism,
joint pains of the shoulders, knees, ankles, hip, a crushed
hand, blurred vision, eye infection, general eye damage and
frequent urination, to include as the result of an
undiagnosed illness occasioned by his service in the Persian
Gulf war zone. He contends that service connection is
warranted for the disabilities manifested by the above-cited
symptomatology and should be granted by the Board.
The issue of service connection for a low back disorder and a
right thigh mass will be addressed in a REMAND following the
ORDER portion of this decision.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim for a condition or
conditions manifested by internal bleeding, hemorrhoids,
right lower abdominal pain, irregular bowel movements,
excessive gas, gastrointestinal bleeding, constipation,
dehydration, weight loss, weight gain, colon inflammation,
earaches, ringing in the ear, hearing loss and pain in the
left ear, fatigue, night sweats, fever, insomnia, lack of
concentration, memory loss, skin rashes, hyperthyroidism,
joint pains of the shoulders, knees, ankles, hip, a crushed
hand, blurred vision, eye infection, general eye damage and
frequent urination, to include as a result of an undiagnosed
illness, is not well grounded.
FINDINGS OF FACT
1. Disability due to an undiagnosed illness was not shown to
be first manifest during service in the Southwest Asia
theater of operations during the Persian Gulf War nor is
there evidence of compensable disability attributable to an
undiagnosed illness after service discharge.
2. The claim for service connection for conditions
manifested by internal bleeding, hemorrhoids, right lower
abdominal pain, irregular bowel movements, excessive gas,
gastrointestinal bleeding, constipation, dehydration, weight
loss, weight gain, colon inflammation, earaches, ringing in
the ear, hearing loss and pain in the left ear, fatigue,
night sweats, fever, insomnia, lack of concentration, memory
loss, skin rashes, hyperthyroidism, joint pains of the
shoulders, knees, ankles, hip, a crushed hand, blurred
vision, eye infection, general eye damage and frequent
urination, to include as a result of an undiagnosed illness,
is not supported by cognizable evidence showing that the
claim is plausible or capable of substantiation.
CONCLUSION OF LAW
1. Disability alleged to be due to an undiagnosed illness is
not shown to have been incurred during the appellant’s period
of active duty in the Southwest Asia theater of operations
during the Persian Gulf War nor shown to a compensable level
after service discharge. 38 U.S.C.A. §§ 1110, 5107 (West
1991); 38 C.F.R. § 3.317 (1997).
2. The claim for service connection for conditions
manifested by internal bleeding, hemorrhoids, right lower
abdominal pain, irregular bowel movements, excessive gas,
gastrointestinal bleeding, constipation, dehydration, weight
loss, weight gain, colon inflammation, earaches, ringing in
the ear, hearing loss and pain in the left ear, fatigue,
night sweats, fever, insomnia, lack of concentration, memory
loss, skin rashes, hyperthyroidism, joint pains of the
shoulders, knees, ankles, hip, a crushed hand, blurred
vision, eye infection, general eye damage and frequent
urination, to include as a result of an diagnosed illness, is
not well grounded. 38 U.S.C.A. § 5107(a).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a)
(1997). If a condition noted during service is not shown to
be chronic, then generally a showing of continuity of
symptoms after service is required for service connection.
38 C.F.R. § 3.303(b) (1997). Service connection may also be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (1997).
Service connection may be established for chronic disability
resulting from an undiagnosed illness which became manifest
either during active service in the Southwest Asia theater of
operations during the Persian Gulf War or to a degree of 10
percent or more not later than December 31, 2001. 38 C.F.R.
§ 3.317(a)(1) (1997).
Objective indications of a chronic disability include both
“signs,” in the medical sense of objective evidence
perceptible to an examining physician, and other, non-medical
indicators that are capable of independent verification.
Disabilities that have existed for six months or more and
disabilities that exhibit intermittent episodes of
improvement and worsening over a 6-month period will be
considered chronic. The 6-month period of chronicity will be
measured from the earliest date on which the pertinent
evidence establishes that the signs or symptoms of the
disability first become manifest. A chronic disability
resulting from an undiagnosed illness referred to in this
section shall be rated using evaluation criteria from part 4
of chapter 38, Code of Federal Regulations, for a disease or
injury in which the functions affected, anatomical
localization, or symptomatology are similar. A disability
referred to in this section shall be considered service-
connected for purposes of all laws in the United States. 38
C.F.R. § 3.317(a)(2-5).
Signs or symptoms which may be manifestations of an
undiagnosed illness include, but are not limited to, fatigue,
signs or symptoms involving skin, headache, muscle pain,
joint pain, neurologic signs or symptoms, neuropsychological
signs or symptoms, signs or symptoms involving the
respiratory system (upper or lower), sleep disturbances,
gastrointestinal signs or symptoms, cardiovascular signs or
symptoms, abnormal weight loss, or menstrual disorders. 38
C.F.R. § 3.317(b) (1997).
The threshold question in this instance is whether the
veteran has presented a well-grounded claim for service
connection. In this regard, the veteran has “the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded.”
38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140
(1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
While the claim need not be conclusive, it must be
accompanied by supporting evidence. Tirpak v. Derwinski, 2
Vet. App. 609, 611 (1992). In the absence of evidence of a
well-grounded claim, there is no duty to assist the claimant
in developing the facts pertinent to the claim, and the claim
must fail. See Epps v. Gober, 126 F.3d 1464 (1997); see also
Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v
Brown, 8 Vet. App. 563, 568 (1996) (en banc).
To establish that a claim for service connection is well
grounded, the veteran must satisfy three elements. First,
there must be a medical diagnosis of a current disability.
Second, there must be medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury. Third, there must be medical evidence of
a nexus between an in-service disease or injury and the
current disability. Where the determinative issue involves
medical causation, competent medical evidence to the effect
that the claim is plausible is required. See Epps v. Gober,
supra.
The Board finds in this instance that the appellant's claims
for a condition or conditions manifested by internal
bleeding, hemorrhoids, right lower abdominal pain, irregular
bowel movements, excessive gas, gastrointestinal bleeding,
constipation, dehydration, weight loss, weight gain, colon
inflammation, earaches, ringing in the ear, hearing loss and
pain in the left ear, night sweats, fever, insomnia, lack of
concentration, memory loss, skin rashes, hyperthyroidism,
joint pains of the shoulders, knees, ankles, hip, a crushed
hand, blurred vision, eye infection, general eye damage and
frequent urination, to include as manifestations of an
diagnosed illness, is not well grounded and that there is no
further duty to assist him in the development of these
claims. Consequently, the claims must be denied on this
basis.
The veteran’s extensive service medical records reflect that
he was seen throughout the course of his service for
complaints (which have been extensively documented in the
procedural record) including bloody urine (hematuria),
urinary frequency, low back pain, ear pain and bleeding, left
foot pain, bilateral thigh pain, bilateral knee pain, neck
injury and pain, eye infection and conjunctivitis, blurred
vision and decreased visual acuity, abdominal pain and
tenderness, vomiting blood, sinus symptoms, jock itch with
history of fungal infection, hemorrhoids, night sweats,
fatigue, and right hand injury with numbness, tingling and
swelling. However, all systems were evaluated as normal upon
examination in March 1992 for discharge from active duty,
despite the appellant’s referencing of numerous complaints
and disorders that he had had over the years.
Pursuant to his claim for the multiple claimed disorders
recited above, the veteran was afforded a number of VA
examinations for compensation and pension purposes in January
1993.
On audiology examination, it was found that hearing was
within normal limits for all frequencies and speech
discrimination was 100 percent, bilaterally. It was reported
that no tinnitus was present.
On eye examination, the veteran’s visual acuity was noted to
20/20 in both eyes as to both distance and near vision and no
eye abnormalities were detected. It was reported that ocular
health was within normal limits.
Upon general medical examination, the veteran was observed to
stand 5’10” tall and weighed 197 pounds. Build and state of
nutrition were noted to be good. Examination of the skin,
lymphatic system, head, face, nose, mouth and throat was
essentially negative. It was reported that examination of
the gastrointestinal system was essentially normal and that
no tenderness was elicited. On examination of the
genitourinary system it was recorded that there was a history
of hematuria, but that the appellant had no current
complaints in this regard. Laboratory diagnostic testing,
including SMA 12, CBC, urinalysis, and an upper
gastrointestinal were all reported to be normal.
The veteran was afforded examinations of the joints and spine
as well neurologic evaluation upon which he rendered a
history of injuries to the right hand, right thigh and neck,
and low back pain in service. Following examination, it was
reported that no pathology of the right hand and shoulders
were found, including upon radiologic study. The
examinations also revealed no pathology regarding the knees,
cervical or lumbar spine. It was noted that X-rays were
ordered of the cervical spine and lumbar spine, but that the
veteran did not have them done. It was reported that no
focal or neurologic deficit was found at that time.
The veteran underwent a comprehensive VA general medical
examination of all systems in March 1995 where he claimed
symptoms of hemorrhoids, gastrointestinal pain, joint pain of
the shoulders, knees, ankles, hips, upper back, and lower
back, ringing in the left ear, hyperthyroidism, growth on the
right thigh muscle and weakness and loss of sensation of the
right thigh, fatigue, insomnia, diminished memory, lack of
concentration, as well as a rash.. The examiner provided a
detailed history of the reported medical history noting that
the appellant repeatedly related all of the conditions to his
Persian Gulf War service.
Upon examination, the appellant was found to be 5’9” tall
and weighed 159 pounds. He indicated that he had weighed up
to 185 pounds but did not attribute the weight loss to any
known particular change. He was observed to be well
nourished, developed, muscled and conditioned. Temperature
was normal. Posture, carriage, and gait were normal. The
skin was of normal texture and turgor. No abnormalities of
the face and neck were observed. The thyroid was reported to
be normal. The external canals, tympanic membranes and
hearing acuity were normal. External ocular movements,
pupillary reactions and fundi were normal. Examination of
the abdomen disclosed that it was flat and without evidence
of palpable organs, masses or areas of tenderness. No
hemorrhoids were visible at that time. It was reported that
there were no deformities of the spine or any joints of the
extremities and that there was full and normal range of
motion of all the joints. There were no effusions,
crepitations, synovial proliferations, heat or redness or
tenderness. There was good muscle tone and strength.
Straight leg raising was negative. The feet were negative.
The examiner found no signs of endocrinopathy. It was
reported that the veteran appeared euthyroid and that the
thyroid itself was palpably normal.
No abnormalities were detected upon neurologic evaluation.
The sensory and motor examinations were negative.
Psychiatrically, it was found that there was no obvious
impairment of memory or mentation. Diagnostic and chemical
laboratory studies, including X-rays a T4 and TSH for thyroid
function were all within normal limits, except a white blood
cell count which was slightly depressed at 3.9 from the
normal 4-10. Diagnoses included history of arthralgias of
many joints without objective evidence confirming disease
therein, and history of hemorrhoid, currently inactive. The
examiner commented that there was no real consistency between
the veteran’s story as given and the physical examination.
He was observed to be quite healthy, normal and emotionally
stable.
At the outset, the Board points out that it is not making any
determination with respect to the credibility of the
veteran's assertions as to what symptoms he currently
experiences with respect to his claims for service
connection. However, even accepting his contentions as true,
there is no clinical evidence that he currently has any
ratable conditions or disabilities manifested by internal
bleeding, hemorrhoids, right lower abdominal pain, irregular
bowel movements, excessive gas, gastrointestinal bleeding,
constipation, dehydration, weight loss, weight gain, colon
inflammation, earaches, ringing in the ear, hearing loss and
pain in the left ear, fatigue, night sweats, fever, insomnia,
lack of concentration, memory loss, skin rashes,
hyperthyroidism, joint pains of the shoulders, knees, ankles,
hip, a crushed hand, blurred vision, eye infection, general
eye damage and frequent urination, to include as the result
of an undiagnosed illness. The Board recognizes that the
appellant was treated on a number of occasions in service for
many of the symptoms cited previously. However, current
diagnoses refer to the claimed disabilities by way of history
only, or the clinical data do not show verification of
disorders to which such symptomatology is attributable
thereto.
Upon VA examinations in 1993 and 1993, no evidence of
internal bleeding, hemorrhoids, right lower abdominal pain,
irregular bowel movements, excessive gas, gastrointestinal
bleeding, constipation, dehydration, weight loss, weight
gain, colon inflammation, earaches, ringing in the ear,
hearing loss and pain in the left ear, fatigue, night sweats,
fever, insomnia, lack of concentration, memory loss, skin
rashes, hyperthyroidism, joint pains of the shoulders, knees,
ankles, hip, a crushed hand, blurred vision, eye infection,
general eye damage and frequent urination were found. A
well-grounded claim requires evidence of a present
disability. See Brammer v. Derwinski, 3 Vet.App. 223, 225
(1992) and Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992).
The veteran’s own statements to the effect that he now has
those symptoms or has a disorder to which such symptoms are
attributable do constitute diagnoses of the claimed
conditions since, as a layperson without medical expertise or
training, he is not qualified as a lay person to offer a
medical opinion or diagnosis. See Espiritu v. Derwinski,
2 Vet.App. 492, 494-95 (1992).
Moreover, the Board observes in this instance that there is
no objective evidence, whether medical or non- medical, to
show that the appellant has an undiagnosed illness from his
service in the Southwest Asia theater of operations during
the Persian Gulf War. Overall, the evidence of record does
not show any of his symptoms and complaints to be due to any
undiagnosed illnesses. As service connection may be granted
under 38 C.F.R. § 3.317 (1997) only for disabilities due to
undiagnosed illnesses exhibited by Persian Gulf veterans, the
Board finds that the provisions of this section are not for
application in this case. A well-grounded claim must be
supported by evidence, more than merely allegations. See
Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
Accordingly, without the requisite competent evidence
reflecting that the veteran currently conditions or
disabilities manifested by internal bleeding, hemorrhoids,
right lower abdominal pain, irregular bowel movements,
excessive gas, gastrointestinal bleeding, constipation,
dehydration, weight loss, weight gain, colon inflammation,
earaches, ringing in the ear, hearing loss and pain in the
left ear, fatigue, night sweats, fever, insomnia, lack of
concentration, memory loss, skin rashes, hyperthyroidism,
joint pains of the shoulders, knees, ankles, hip, a crushed
hand, blurred vision, eye infection, general eye damage and
frequent urination, to include as a result of an undiagnosed
illness, he has not met his burden of submitting evidence
that his claims of service connection for such are well
grounded Grottveit, 5 Vet.App. at 93; Tirpak, 6 Vet.App. at
611. Accordingly, the appellant’s claim for entitlement to
service connection for such must be found to be not well-
grounded, and the claim must be denied. See Edenfield v.
Brown, 8 Vet.App. 384 (1995).
As the foregoing explains the need for competent evidence of
current disabilities which are linked by competent evidence
to VA treatment, the Board views its discussions above
sufficient to inform the veteran of the elements necessary to
complete his application for service connection for the
claimed disorders. Robinette, 8 Vet.App. at 77.
ORDER
The claims for service connection for a condition or
conditions manifested by internal bleeding, hemorrhoids,
right lower abdominal pain, irregular bowel movements,
excessive gas, gastrointestinal bleeding, constipation,
dehydration, weight loss, weight gain, colon inflammation,
earaches, ringing in the ear, hearing loss and pain in the
left ear, fatigue, night sweats, fever, insomnia, lack of
concentration, memory loss, skin rashes, hyperthyroidism,
joint pains of the shoulders, knees, ankles, hip, a crushed
hand, blurred vision, eye infection, general eye damage, and
frequent urination, to include as a result of an undiagnosed
illness, is not well grounded and are therefore denied.
REMAND
The Board notes that the veteran was treated for thigh injury
and pain and hamstring tightness in February 1992 while in
service. The record reflects that when he was examined for
VA compensation and pension purposes in January 1993, the
examiner noted a subcutaneous mass in the posterior thigh
which was of undetermined origin. When examined by the VA in
March 1995, the examiner noted that the alleged lump in the
hamstring area of the right thigh was not really evident upon
observation. It was indicated that there may have been a
slight prominence, but it was not felt that there was any
abnormality there. The Board is of the opinion that further
clinical evaluation and resolution is warranted as to this
matter in order to ascertain its etiology to determine
whether it is of service origin.
As well, the Board observes in this instance that the veteran
was treated for low back pain in service. Upon VA
examinations of the back in 1993 and 1995, it shown that
physical evaluations were entirely within normal limits.
However, an X-ray of the back on the latter examination was
interpreted as showing slight disc space narrowing at L5-S1
level. The Board is of the opinion that in view of the
discrepancy between the physical examination findings and
those shown on X-ray, further clinical development is
warranted as to this matter.
The case is thus REMANDED to the RO for the following
actions:
1. The veteran should be scheduled for
a special orthopedic examination to
determine the nature and extent of any
and all disability associated with his
low back and right thigh. All necessary
test and studies, including X-rays,
should be obtained and clinical
manifestations should e reported in
detail. The claims folder and a copy of
this remand should be made available to
the examiner for use in the study of
this case. The examiner is especially
requested to render an opinion as to the
etiology of the right thigh mass, if
any. The examination report should be
typed.
2. The RO should review the examination
report to ensure that it is in complete
compliance with the directives of this
REMAND. If the report is deficient in
any manner, the RO must implement
corrective procedures.
3. The RO should then review the record
and determine whether the veteran’s
claims may be granted. If the benefits
sought on appeal cannot be allowed, the
veteran and his representative should be
furnished a supplemental statement of
the case and be afforded an opportunity
to respond. The case should then be
returned to the Board for further
appellate review.
The purpose of this REMAND is to obtain additional
development and insure due process. The Board does not
intimate any opinion as to the merits of the case.
BRUCE KANNEE
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board’s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1997).
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